What Kind of Law Does Europe Need? The Role of Law, Lawyers and Judges in Contemporary European Integration

5 Colum. J. Eur. L. 1 (1998)

David A.O. Edward. Judge of the Court of Justice of the European Communities.

In August 1870, James Bryce, aged 32 and newly appointed Professor of Civil Law at Oxford, set off with his friend Albert Venn Dicey to visit the United States. In 1886 Dicey published The Law of the Constitution, a work that has guided-some would say stultified-British constitutional thought for more than a century. Two years and two visits to America later, Bryce published The American Commonwealth which Woodrow Wilson called “a noble work possessing in high perfection almost every element that should make students of comparative politics esteem it invaluable.”

Nowadays, the description “a noble work,” especially from the pen of Woodrow Wilson, may be somewhat off-putting. Do not be put off. Bryce’s book, like Dicey’s, is still highly readable. He introduces his subject in this way:

“What do you think of our institutions?” is the question addressed to the
European traveler in the United States by every chance acquaintance. The traveller finds the
question natural, for if he be an observant man his own mind is full of those
institutions. But he asks himself why it should be in America only that he is so
interrogated. In England one does not inquire from foreigners, nor even from
Americans, their views on the English laws and government; nor does the
Englishman on the Continent find Frenchmen or Germans or Italians anxious to have
his judgment on their politics. Presently the reason of the difference appears.

The institutions of the United States are deemed by inhabitants and admitted by
strangers to be a matter of more general interest than those of the not less famous
nations of the Old World. They are, or are supposed to be, institutions of a new
type. They form, or are supposed to form, a symmetrical whole, capable of being
studied and judged all together more profitably than the less perfectly harmonized
institutions of older countries. They represent an experiment in the rule of the
multitude, tried on a scale unprecedentedly vast, and the results of which every one
is concerned to watch.

And yet they are something more than an experiment, for they are believed to
disclose and display the type of institutions towards which, as by a law of fate, the
rest of civilized mankind are forced to move, some with swifter, others with slower,
but all with unresting feet.

I think Bryce (though perhaps not Dicey) would have been happy that in Europe we have created some new institutions for you to study here at Columbia. Yet the time has not yet come when the American traveler in Europe will be asked by every chance acquaintance “What do you think of our institutions?” The sad truth is that, except perhaps in modem Germany, the average European remains largely uninterested in the processes of government and even more uninterested in the theory of government.

Consequently, the institutional debate tends to be dominated by those who continue to believe that the institutions of the United States are a sort of paradigm towards which, in Bryce’s phrase, the rest of civilized mankind are forced to move with unresting feet. As you will soon gather, I am not one of them. I prefer the empirical approach of Bryce, as described by Woodrow Wilson:

Mr Bryce does not treat the institutions of the United States as experiments in the
application of theory, but as quite normal historical phenomena to be looked at,
whether for the purposes of criticism or merely for purposes of description, in the
practical every-day light of comparative politics. He seeks to put American
institutions in their only instructive setting-that, namely, of comparative institutional
history and life. . . De Tocqueville came to America to observe the operation of a
principle of government, to seek a well-founded answer to the question: How does
democracy work ? Mr Bryce, on the other hand, came . . . to observe the concrete
phenomena of an institutional development, into which, as he early perceived,
abstract political theory can scarcely be said to have entered as a formative force.

The empirical approach to American institutions did not begin with Bryce and Woodrow Wilson. Writing 50 years earlier, James Madison said of his own creation:

The more the political system of the United States is fairly examined, the more
necessary it will be found to abandon the abstract and technical modes of
expounding and designating its character and to view it as laid down in the charter
which constitutes it, as a system hitherto without a model; as neither a simple or a
consolidated Government nor a Government altogether confederate; and therefore not
to be explained so as to make it either, but to be explained and designated according
to the actual division and distribution of political power on the face of the
instrument.’

What appears on the face of the instrument is not even a safe guide. As George Bermann has written very recently:

It is no exaggeration to say that the United States constitutional text, as it reads, is a
poor guide to the political and even to the legal realities of federalism.

Armed with these authorities, I urge you not to spend time in your new Center debating whether the European institutions do or do not correspond to some hypothetical American model of federalism. They do not, and they are not intended to do so. On the other hand, it is essential that Americans should have a better understanding of what has happened in Europe and why. And, looking to the future, it is important for us in Europe that the scholars of great universities like Columbia should help us to examine in an objective way whether the European institutions are an adequate response to the problems with which we are faced. In this respect, a comparative study of American experience will be of great value.

Nevertheless, as Bryce said to his readers:

The reader … must not expect the problems America has solved, or those which
still perplex her, to reappear in Europe in the same forms. Such facts, to mention
only two out of many, as the abundance of land and the absence of menace from
other Powers show how dissimilar are the conditions in which popular government
works in the Eastern and in the Western hemisphere. Nothing can be more
instructive than American experience if it be discreetly used, nothing will be more
misleading to one who tries to apply it without allowing for the differences of
economic and social environment.

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